#### Shaw *v.*Robinson, Appellant.

*Deed*— Description—Diver *as boundary*— Low-water *mark.*

Under a call in a patent issued by the Commonwealth describing the land as extending “to a birch j thence up the Eiver Ohio, traversing its several courses” the line extended to and along the stream at low-water mark.

Argued Oct. 21, 1918.

Appeal, No. 160, Oct. T., 1918, by defendant, from order of C. P. Allegheny Co., April T., 1916, No. 613, refusing a motion for a new trial in the case of David Shaw v. William A. Eobinson. Before

Brown, C. J., Frazer, Walling, Simpson and Fox, JJ.

Affirmed.

Action of ejectment for five acres of land in Stowe Township, Allegheny Co., bordering on that portion of the Ohio river known as “Back Channel,” which flows between the mainland and Neville Island. Before. Reid, J.

The facts appear in the opinion of the trial court overruling a motion for a new trial by-Reid, J.:

This is a motion ex parte defendant for a new trial.

The action is ejectment for five acres, more or less, of land in Stowe Township, this county, in possession of defendant under an alleged settlement right, and claimed by plaintiff as part of the land for which he (through Wm. Bonner, his predecessor in title) holds a patent from the Commonwealth. *t*

The land in controversy lies on the shore of that portion of the Ohio river, known as the “Back Channel,” which flows between the mainland and Neville Island. Defendant simply settled upon this site some years ago without any title or authority, established a ferry, built a cabin in which he lives, improved the low lying alluvial ground, planted a garden and some fruit trees, and, upon the theory that this site was open to occupancy by the *312first comer, lias since field possession. Tfiis title by occupancy, however, had not ripened into a legal right, by lapse of time, — and at tfie trial fiis defense to tfie action was lack of title in tfie plaintiff.

Tfie only question, therefore, was, had plaintiff title to tfie ground tfius occupied?

Tfie interpretation of tfie patent referred to was necessarily for tfie court, — and there being no question of fact to be determined by a jury, after tfie trial judge had field, by virtue of tfie language of tfie patent, that plaintiff’s title went to tfie Ohio river, the jury was instructed to render a verdict for tfie plaintiff.

Tfie only question to be determined, therefore, in tfiis motion is whether or not tfie court erred in giving such instructions.

Tfie original warrant, dated December 10, 1817, tfie warrant-book containing plot of tfie original survey and tfie official record of surveys and patents, all showed that tfie tract was bounded by tfie Ohio river.

Tfie patent from tfie Commonwealth to Wm. Bonner, dated December 5,1818, describes plaintiff’s land as follows: “Beginning at a hickory; thence by land of John McFadden, north 15°, east 224 perches to a birch; thence up tfie River Ohio, traversing its several courses, 386 perches to a lynn” (and thence by lands of Haskins, McCoy, Ewing et al., to place of beginning).

Defendant’s contention is that tfie line did not pass beyond tfie “birch,” — tfie call “thence up tfie River Ohio traversing its several courses,” not being effective except to define a line following tfie meanderings of that stream some distance in shore from tfie river, and tfius leaving an ungranted strip lying between it and tfie river.

Tfiis position is untenable in tfie light of tfie case of Klingensmitfi v. Ground, 5 Watts 458, and Wood v. Appal, 63 Pa. 210, which hold that such a call carries tfie line to and along tfie stream. To elaborate upon tfie subject, where tfie authorities referred to are so clear and convincing, would be of no avail.

*313We have examined the exhaustive brief of the defendant’s counsel, but we cannot assent to the view there urged that this action is not within and governed by the principles laid down in the cases cited above.

We, therefore, refused the defendant’s motion for a new trial.

Defendant appealed.

*Errors assigned*were in refusing defendant’s motion for a new trial, and in certain instructions.

*Frank I. Gosser,*for appellant.

In Pennsylvania, wherever a stream is navigable, and it is made the boundary of a grant by the State, the title passes to low-water mark, and no farther. It is absolute to high and qualified as to what intervenes: Freeland v. Penna. R. R. Co., 197 Pa. 529; Fulmer v. Williams, 122 Pa. 191; Carson v. Blazer, 2 Binney 474; Shrunk v. Schuylkill Nav. Co., 14 S. & R. 71; Ball v. Slack, 2 Wharton 508; Zimmerman v. Union Canal Co., 1 W. & S. 346; Johns v. Davidson, 16 Pa. 512; Bailey v. Miltenberger, 31 Pa. 37; McKeen v. Delaware Div. Canal Co., 49 Pa. 424; Tinicum Fishing Co. v. Carter, 61 Pa. 21.

Title to additions made by gradual and imperceptible process of accretion is in the riparian proprietor; but when additions or increases are made by artificial filling-in of the channel below natural low-water mark, title remains in the Commonwealth as a part of the river bed: Allegheny City v. Moorehead, 80 Pa. 118; Philadelphia. Co. v. Scott, 81 Pa. 80; Poor v. McClure, 77 Pa. 214; Philadelphia Co. v. Stimson, 223 U. S. 605; Jeffries v. East Omaha Land Co., 134 U. S. 178; St. Louis v. Rutz, 138 U. S. 226; Nebraska v. Iowa. 143 U. S. 359; Shively v. Bowlby, 152 U. S. 1; Mulry v. Norton, 100 N. Y. 424; Sage v. The Mayor, 154 N. Y. 83.

The doctrine of accretion rests upon an increase by imperceptible degrees, through natural causes, such as the ordinary action of water: Philadelphia Co. v. Stimson, *314223 U. S. 605; Sage v. The Mayor, 154 N. Y. 61; Mulry v. Norton, 100 N. Y. 424.

January 4, 1919:

The beds, gravel and sand-bars of the navigable rivers of this State are not subject to private appropriation’ under the ordinary system of land laws: Poor v. McClure, 77 Pa. 214; City of Allegheny v. Nelson, 25 Pa. 332; Brandt v. McKeever, 18 Pa. 70.

The legal presumption from the locus in quo is that the land is still a part of the bed of the river, until some legal proceeding shall have established the contrary, and a law shall open it to private appropriation: Poor v. McClure, 77 Pa. 214; Bagley v. Wallace, 16 S. & R. 244; Freytag v. Powell, 1 Wharton 536.

A patent is not operative against the right of a third person existing before the issuing of the patent: Smith v. Yasbinder, 77 Pa. 127; Balliot v. Bauman, 5 W. & S. 150.

*Frank Thomson*and *George C. Bradshaw,*of *Thomson & Bradshaw,*for appellee,

cited: Wood v. Appal, 63 Pa. 210; Klingensmith v. Ground, 5 Watts 458.

Per Curiam,

In directing a verdict for the plaintiff the learned trial judge correctly held that his title extended to low-water mark: Klingensmith v. Ground, 5 Watts 458;. 'Wood v. Appal, 63 Pa. 210; and the judgment is affirmed on the opinion of the court below refusing the motion for a new trial.